87 F.

3d 1327
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

UNITED STATES of America, Plaintiff-Appellee,

v.
Alexander MIHALY, Defendant-Appellant.

No. 95-6443.

United States Court of Appeals, Tenth Circuit.

June 25, 1996.

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges. *

ORDER AND JUDGMENT

BALDOCK, Circuit Judge.

1 This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

2 Defendant Alexander Mihaly pleaded guilty to wire fraud, 18 U.S.C. 1343,

and two counts of mail fraud, 18 U.S.C. 1341. The district court sentenced
him to fifteen months imprisonment on each count, and ordered the sentences
to run concurrently. The court, however, ordered the fifteen-month sentences to
run consecutive to Defendant's four prior federal sentences, noting that it had
"no discretion" to do otherwise. On appeal, we reversed and remanded for
resentencing. United States v. Mihaly, 67 F.3d 894, 895 (10th Cir.1995). We
held that the district court erred by concluding it lacked discretion to order
Defendant's instant sentences to run consecutive to his prior sentences. We
noted that "a district court 'retains discretion to depart [from the guidelines],
 subject to review, if it determines that factors relevant to the sentencing have
not been addressed adequately by the [g]uidelines.' " Id. at 896 (quoting United
States v. Shewmaker, 936 F.2d 1124, 1127 (10th Cir.1991), cert. denied, 502
U.S. 1037 (1992)).

3 On remand, the district court held a resentencing hearing. After hearing

argument, the court concluded Defendant had demonstrated no basis for a
departure from the guidelines, and again ordered Defendant's instant fifteen-
month sentences to run consecutive to his prior sentences: "The Court finds no
basis for a departure from the guidelines in order to allow these [sentences] to
run concurrent as opposed to consecutive, so the sentence previously imposed
will be the sentence that will remain in effect at resentencing." This appeal
followed.

4 On appeal, Defendant argues the district court should have departed from the
guidelines and ordered his instant sentences to run concurrent with his prior
sentences. Defendant contends the court did not consider U.S.S.G. 5G1.3(b),
or the resulting delay in Defendant's parole release date. We conclude the court
did not misapply the guidelines. We have no jurisdiction to review the district
court's discretionary refusal to depart, and therefore DISMISS the appeal.
United States v. Rodriquez, 30 F.3d 1318, 1319 (10th Cir.1994).

5 DISMISSED.

* The parties waived oral argument. The case is therefore ordered submitted on
the briefs